Blydenstein v. Haseltine

140 Pa. 120 | Pa. | 1891

Per Curiam:

The plaintiffs took judgment for the amount admitted to be due by the affidavit of defence, issued an execution therefor, and collected the money. Subsequently, they took a rule for judgment for $9,500, the difference between the amount claimed and the amount admitted, for want of a plea, which rule was discharged by the court below.

It was conceded there is no rule of the court below authorizing the plaintiffs to take judgment for the amount admitted to be due, and to proceed for the remainder. There is no such right at common law, which recognizes but one judgment in a particular case; nor has any act of assembly been called to our attention which sustains the plaintiffs’ contention. It is true, there is a rule of court in many counties of the state which authorizes this mode of procedure. The act of May 25, 1887, P. L. 272, provides that “in the action of assumpsit, judgment may be moved for, for want of an affidavit of defence, or for want of a sufficient affidavit, for tbe whole or part of the plaintiff’s claim, as the case may be, in accordance with the present practice in actions of debt and assumpsit.” This act evidently recognizes the practice above referred to ; but in the county of Philadelphia, there is not, as before observed, any rule of court or practice which permits a plaintiff to take judgment for the amount admitted to be due, and to proceed for the residue of the claim.

Judgment affirmed.